Could something like ‘Making a Murderer’ play out in Canada?

TORONTO – The controversial legal saga exposed in the popular Netflix documentary “Making a Murderer” could play out in Canada but much of the footage that made the series so compelling would never come to light here, some lawyers who have seen the show said.

The show, which was released last month and continues to fuel countless water-cooler debates, begins as Steven Avery is exonerated after spending 18 years in jail in rural Wisconsin.

The 10 hour-long episodes then follow him as he is charged, tried and eventually convicted for a murder he maintains he didn’t commit, weaving together interviews with courtroom video and footage of police interrogations and news conferences.

While the series stirred outrage and disbelief in many who viewed it, similar cases can and have emerged in Canada, a lawyer with the Association in the Defence of the Wrongfully Convicted said.

Police tampering has played a role in some wrongful convictions, though it is far from the norm, said Amanda Carling, the organization’s national legal education counsel.

“If (the series) is your main exposure to wrongful convictions, it would have you believe that wrongful convictions are caused primarily by people making decisions to get the wrong guy,” she said.

“But that isn’t how most of the cases go down,” she said. “An equal if not much larger contributor is the stuff that happens because the policies and the training isn’t in place to prevent those things from happening.”

Inquiries into previous wrongful convictions have spurred policies meant to reduce the likelihood of error – including changes in the handling of police lineups and greater awareness of potential tunnel vision in investigations – but no system is fool-proof, she said.

The non-profit organization has exonerated 20 people and is currently working on 12 cases, but Carling said few have received as much attention – or sympathy – as the Avery case.

Part of the show’s appeal stems from the gripping courtroom footage – none of which would be available in Canada under current rules, said Iain MacKinnon, a Toronto media lawyer.

“One of the most impressive things about the whole documentary is the wealth of court material that the filmmakers have because you could never make a documentary that detailed and that thorough in Canada,” he said.

“We have a certain degree of open justice and access to the courts in Canada … and one of the access points that we don’t have that they did in the U.S. is that there’s no television, there’s no cameras allowed in the courtrooms.”

“So we’ll never get any video from any criminal case,” he said. Journalists can obtain transcripts and audio recordings of court proceedings, but the sound can’t be used for broadcast, MacKinnon said.

Anita Szigeti, the Toronto director of the Criminal Lawyers’ Association, said the daily news conferences in which prosecutors and defence lawyers discussed the Avery case were “alien” to her.

“You would never see that here. We don’t normally speak with the media while a matter is before court. It’s just weird,” she said.

It could also erode goodwill between the two sides, Szigeti said.

“Having to recap and speak to the media and try to put a positive spin on what you’ve accomplished for your client, I think it would foster a lot of animosity between opposing counsel and I think for that reason, it’s pretty problematic,” she said.

Overall, Canada’s justice system, which is based on the British model, is “more cautious” when it comes to granting access, largely out of concern that the information could influence potential or sitting jurors, said MacKinnon, the media lawyer.

“I’m not saying that can’t happen, and maybe the U.S. is on the other end of the extreme, but I think our court system can move a little more towards that paradigm or model than what we currently have, which is a lot of times the public is just left in the dark about a lot of information that happens in courts.”